Barrowman v. Niagara Mohawk Power Corp. , 636 N.Y.S.2d 245 ( 1995 )

—Order unanimously affirmed with costs. Memorandum: Supreme Court properly granted plaintiffs motion for partial summary judgment on the Labor Law § 240 (1) cause of action. Plaintiff alleges that he was injured when he lost his balance while standing on a diagonal brace and fell some 12 feet to a concrete floor, striking his chest or ribs on a scaffolding plank as he fell. Defendant failed to come forward with evidence controverting plaintiff’s version of the accident and did not conduct an investigation of the accident. Plaintiffs version is supported by the affidavit of a co-worker stating that he heard plaintiff fall and observed plaintiffs injury within minutes of the fall. Under those circumstances, the fact that plaintiffs fall was unwitnessed does not preclude summary judgment (see, Niles v Shue Roofing Co., 219 AD2d 785; Desouter v HRH Constr. Corp., 216 AD2d 249; McLean v Vahue & Son Bldrs., 210 AD2d 999; Madigan v United Parcel Serv., 193 AD2d 1102). (Appeal from Order of Supreme Court, Erie County, Howe, J. — Labor Law.) Present — Green, J. P., Pine, Wesley, Balio and Boehm, JJ.